Justice Watch: The Alliance for Justice Blog

April 2015

The belief that we can tell the guilty from the innocent and those deserving of death from those deserving of life has many roots, but one of the most powerful may be the use of science—or what purports to be science— in criminal trials. Scientific evidence often comes to court with an aura of infallibility, appearing to offer jurors certainty that they will not convict (or sentence to death) an undeserving person.

But while there is no doubt science has much to offer the criminal system’s core truth and justice-seeking missions, our experience at the Innocence Project demonstrates that when purported scientific evidence is not validated or reliable, it has a devastating effect on those same aims. Indeed, the convictions in almost half of the 329 DNA exonerations rested in part on unvalidated and unreliable scientific evidence. Thirteen of these innocent people, like Ray Krone and Dennis Williams, were also sentenced to death. These are not isolated problems. Just last month, The Washington Postreported that “[t]he Justice Department and FBI have formally acknowledged that nearly every [hair microscopy] examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000.”

Unvalidated and unreliable forensic science is being used not just to determine who will die, but how. On April 29th, the Supreme Court heard oral arguments in Glossip v. Gross, a case that challenges Oklahoma’s use of an anti-anxiety drug called midazolam in its lethal injection procedures. Oklahoma, like many states, uses a three-drug protocol in executions. The first of these drugs is intended to “induce[] a deep, comalike unconsciousness,” before two other drugs are used to induce paralysis and death. This deep unconsciousness is necessary to ensure those injected with the “liquid fire” of the third, killing drug do not feel constitutionally intolerable pain.

After European manufacturers took measures to prevent their products from being used in executions, Oklahoma turned to midazolam to create this unconscious state. In 2014, Oklahoma used midazolam for the first time in the execution of Clayton Lockett. Even after receiving all three drugs, including 100 milligrams of midazolam, and being declared unconscious, Lockett began to “writhe and gasp,” suggesting he could feel the “agonizing suffocation and pain” caused by the two other drugs. (Two other men, Joseph Wood in Arizona and Dennis McGuire in Ohio, suffered similar fates during their executions.) After Lockett’s botched execution, Oklahoma increased the midazolam dosage to 500 milligrams.

Glossip and a group of other petitioners challenged this protocol in federal court. At an evidentiary hearing, Oklahoma put on only one witness, Dr. R. Lee Evans, to support its use of the drug. Evans testified that 500 milligrams of midazolam would render a person sufficiently unconscious for purposes of execution. But this conclusion has no basis in science, and no reliable scientific data or methodologies supported it. Rather, Evans merely presumed that because midazolam would kill a person at a specific dose, that same dose would also cause a sustained coma before causing death—a conclusion belied by the many botched midazolam executions described above. As. Evans himself admitted, only “extrapolation” and “assumption” supported this opinion. Indeed, because no peer-reviewed scientific literature—one of the hallmarks of validated and reliable science—supported his extrapolations, Evans relied instead on the website drugs.com. In addition, Evans made a material miscalculation in determining the drug’s toxic dose in this first instance. It was on this unscientific testimony that the district court, and ultimately the appeals court, upheld Oklahoma’s use of the drug.

Unsupported speculation and mathematical errors are not science. Science requires a rigorous application of the scientific method, which in turn demands empirical testing methods, peer review, and objective standards. Whether the Court will ultimately acknowledge that purportedly scientific testimony which falls short of science also falls short of what is constitutionally necessary to take a person’s life remains to be seen. At oral argument, several of the Justices, Justice Breyer in particular, evinced serious concern about the lack of scientific basis for Dr. Evans’s opinion. Whatever the Court decides, it is plain that basic notions of fairness and justice require that only validated and reliable forensic science be used to determine guilt and punishment; no less do they compel us when determining how such punishments are carried out.

Dana Delger is a staff attorney in the Strategic Litigation Unit of the Innocence Project.

In comments today at the National Press Club, Senator Grassley said of judicial nominations: “Come July of 2016, probably they’ll be cut off and not approving any . . . It’s just kind of tradition.”

But this “tradition” is one of Grassley’s own making. Presidents regularly have district and circuit court nominees confirmed after July 1 of their final year in office. President Clinton had nine in 2000. President George W. Bush had 14 in 2008. And in each case the president faced a Senate controlled by the opposition party.

Sen. Grassley

More importantly, President Clinton’s and Bush’s nominees were treated fairly throughout their final two years in office, when they had 73 and 68 judicial nominees confirmed, respectively. In the first four months of his final two years, President Obama has had two.

Senator Grassley is making it clear he’s committed to obstructing the confirmation process from the beginning to end of this term—and now he wants the end to come sooner than expected.

When I was a kid, we used to play a game called M.A.S.H. The game was simple: all you needed was a pen and paper. You’d come up with a bunch of categories, like what job you would have, who you would marry, what your wedding colors would be, how much money you’d make, where you would live, how many children you would have, and what sort of transportation you’d have. You and your friends would come up with two “good” answers and two “bad” answers for each category, then eliminate options based on your Magic Number until you had the story of your life.

I always thought the marriage questions were silly. I didn’t care about who I would marry, or what color the placemats would be at my wedding. Marriage just wasn’t something that mattered much to me. It seemed so much less relevant than whether or not the job I had would pay me enough to afford the place I was living in, or whether I’d have to take the bus rather than the train.

Thirty years later, I realize that M.A.S.H. was problematic in many more ways than I ever grasped, but on the marriage categories, my opinion hasn’t changed a whole lot. Learning about the civil rights movement has taught me the importance of legal recognition; having a better understanding of the costs associated with end of life decisions, second parent adoption, and the myriad other rights that are otherwise automatically granted along with a marriage certificate has made me appreciate the economic value of relationship recognition.

On Tuesday, the question of whether the U.S. Constitution requires such recognition for all same-sex couples, regardless of where they live, will be before the U.S. Supreme Court. Still, irrespective of the outcome of the cases the Supreme Court will hear, most of the other concerns I have about how my life will look and how the lives of the millions of LGBTQ people in this country will be lived will remain largely unchanged.

None of these things are going to abruptly change when the Supreme Court makes its decision in June. If the Court determines that sexual orientation qualifies as a “suspect” or “semi-suspect” class, it will make it easier for lesbian, gay, bisexual, and queer people to assert their right to equal treatment in areas like government housing and employment. That is a phenomenally important legal development. However, it isn’t an important real-life development for the majority of us. It won’t mean that LGBTQ people will suddenly be able to afford a bigger apartment, or will instantly have the education that is required for a higher-paying job. It won’t mean an end to biased policing, or to over-discipline in schools.

The Court’s decision won’t eradicate discrimination or eliminate its legacy, and it won’t have any impact on the other intersectional identities we hold. To start with, we will still need to fight for access to public housing, especially for people who are reentering the community after a period of incarceration. We will need to fight for access to health care, including reproductive health care, transition-related care, and HIV/AIDS care, for every person, regardless of their income. We will need to fight to create safe and affirming spaces for our youth population and for our aging population. We will need to fight to reduce instances of violence against and within our community. And those fights will only start to address the needs of our community.

I choose to hope that the Court will make the right decision. Regardless of what the justices decide, I will continue to work to make sure that every member of our community has access to all of the things that M.A.S.H. assumed we’d be able find when we grew up: housing, employment with a livable wage, food, the right to choose when and if we have children, education, a life without police brutality, self-determination, and freedom.

With a growing chorus calling for Senate Republicans to drop their obstruction of President Obama’s judicial and executive nominees, Judiciary Chairman Chuck Grassley is finding it hard to explain away all the delays.

Yesterday, Grassley was asked about attorney general nominee Loretta Lynch, who has been pending for more than five months, longer than any other attorney general nominee in over 30 years. Straining credulity, Grassley claimed that November and December should not be counted toward Lynch’s overall wait time, because Democrats controlled the Senate back then, and Republicans did not take control until January.

That claim is absurd on its own—White House Press Secretary Josh Earnest called it “an astounding display of duplicity”—but it’s even worse considering what Grassley has said about judges. As we’ve noted before, although the Senate has in fact confirmed only one judge this year, Grassley claims that 11 more judges, reported out of committee and confirmed during the lame duck session last congress, should be counted toward Republican totals for this congress.

A spokeswoman for Senator Charles Grassley, the new chairman of the Senate Judiciary Committee, said that by the senator’s count, Obama already had 11 nominees confirmed in the new Congress because Democrats pushed them through during a “lame duck” session last [year], against tradition.

In other words, Grassley is perfectly happy to take credit for confirmations that happened last year, just not the delay. He can’t have it both ways.